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Friday, 8 April 2011

Illegality

[Thanks to Rad Kohanzad, pupil at Old Square Chambers, for preparing this case summary]

The EAT (Silber J) has handed down its decision in Allen v Hounga, which is a tragic case of abuse and exploitation demonstrating the harsh operation of the law applicable to illegality, while also providing a useful review of the relevant authorities.

The Claimant was engaged in Nigeria to work in the UK as a domestic servant. On the employer's instigation, the Claimant obtained a Nigerian passport in their family name and falsely suggested in her visa application that she was a relative of theirs visiting for a holiday. She then intentionally overstayed.

The Claimant was paid £50 per month and was subjected to serious physical abuse by the Respondent. She ultimately resigned.

Upholding the tribunal's decision, the EAT held that:

despite the Respondent instigating the illegality, the Claimant knowingly participated in it and therefore her claims of unfair dismissal, holiday pay and breach of contract were unenforceable;

she was entitled to an award for injury to feelings because it was held that her discrimination claim was not "inextricably linked with the illegal conduct"; but

she was not entitled to any potential loss of earnings resulting from her discriminatory dismissal because she never had the right to work in this country, which seems to conflate principles of tortuous damages with illegality.

Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.

Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.